Archives for March 2012

On Tuesday, Mar. 27, 2012, Georgia Tech is hosting an event entitled “Young Entrepreneur Summit,” bringing together leading young business people, youth advocacy organizations, and government experts to listen to and address critical challenges and formulate public policy changes needed to move young entrepreneurs’ business agenda to the next level.

This event will be held athe Georgia Tech Research Institute’s conference center, located at 250 – 14th Street, NW, Atlanta, GA 30308.

Perhaps for as long as the federal government has reported which of its contracts have been awarded to small businesses, critics have charged that many of those contracts have actually gone to large companies — often very large companies.

Recently, the American Small Business League, perhaps the loudest of those critics, tried to outline the scope of diversion. The association issued a report that studied the 100 companies that won the most federal small-business contract dollars in 2011 and found that at least 72 of them either had too many employees or too much revenue to be eligible for government assistance to small business. (S.B.A. size standards vary by industry and sector, but generally a company must have fewer than 500 employees or less than $7 million to be considered small.)

The federal government, the world’s largest buyer of goods and service, is obliged by law to try to direct 23 percent of its purchases to small businesses, though there are no penalties for failure. The government hasn’t reached that goal in years, and while recording a deal with a bigger business as a small-business contract — whether by mistake or by fraud — does not necessarily mean that a small company has been denied an opportunity, it does exaggerate the government’s contracting achievement. In the view of Elliott Rosenfeld, of the league, said that in turn undermined the case for stronger enforcement of contracting rules. And by inflating an agency’s sense of achievement, it could weaken the agency’s drive to award more contracts to small businesses.

S.B.A. officials, for their part, insist the league’s analysis is premature. This summer, the S.B.A. will release its own report on the government’s contracting efforts in 2011, said a spokeswoman, Hayley Meadvin, after spending months reviewing the records. “By the time we release our fiscal year report, we have corrected these mistakes,” she said. “We spend a lot time making sure our data is as clean as can be.”

Moreover, the league has been prone to sweeping accusations. The group called this latest report, for instance, “strong evidence that large companies are the fraudulent recipients of the majority of federal small-business contracts every year.” But even if improperly coded contracts are as pervasive as the association claims, is it necessarily the result of fraud?

The Agenda decided to look at one large company, mentioned incidentally in the report, that won small business contracts in 2011, to try to find out: The New York Times Company. The Times was not among the league’s list of 100; it was identified as one of 55 well-known corporations that received small-business contracts last year when it sold $56,821 worth of newspapers to the United States Military Academy at West Point, N.Y. — 500 daily subscriptions for the 28 weeks school is in session, according to Carol D’Andrea, The Times’s circulation manager for sales to schools and colleges.

In the government’s record of the West Point transaction, known as a contact action report, The Times is described as having $3 billion in revenue — and 10 employees. (Both figures were wrong: in 2011, the company’s revenue was $2.3 billion and the work force totaled 7,273 employees, according to the most recent annual report.) In a field labeled “Contracting Officer’s Business Size Selection,” the document describes The Times as a “small business.” Under government size standards, newspaper publishers must have fewer than 500 employees to be considered small.

Our inquiry began with a call to West Point. The contracting officer who approved the deal, Kathleen Judson, said in a brief interview that she had not designated The New York Times as a small business. “The only way that could have happened is that it must have been prepopulated,” she said. “Sometimes the fields come through on the contract action report prepropulated. I know The New York Times is a large company.”

Here’s where it starts to get complicated — and government officials contacted by The Agenda offered little help in clearing up the confusion. S.B.A. officials spoke authoritatively about the agency’s efforts to correct contracting records, but referred our questions about how those records are created to the General Services Administration, which oversees the procurement infrastructure used across the government. The G.S.A.’s deputy press secretary, Adam Elkington, initially sent us to the Army for answers, then later promised to find us a colleague who could answer basic contracting questions. (He never did.) A spokesman for West Point, Frank DeMaro, wrote down our questions but did not answer them. Eventually, Daniel Elkins, a spokesman for the Army’s Mission and Installation Contracting Command at Fort Sam Houston, in Texas, fielded some of our queries.

This is what we know: every entity selling to the government must sign up with the G.S.A.’s Central Contractor Registration with a unique identification number, known as a DUNS number, from Dun & Bradstreet. The vendor supplies its annual revenue and employee headcount for the entire organization, which the S.B.A. uses to determine whether the entity is a small business. What complicates things is that companies must register each legal division, or any office with a separate location or address separately. The New York Times currently has at least three active contractor registrations. One of these was set up by Ms. D’Andrea and her colleagues in The Times’s Education Sales department in order, she said, to sell the subscriptions to West Point.

The Times is not identified as a small business in the Education Sales department’s registration. It turns out, though, that West Point did not use this registration to pay The Times. Instead, the contract refers to the DUNS number used by another registered Times Company entity, this one made by the TimesCenter, an event hall at the company’s headquarters on Eighth Avenue. In that registration, The Times did identify itself as a small business.

A Times Company spokeswoman, Eileen Murphy, said by e-mail that the employees who initially registered the TimesCenter were no longer employed there. But, she said, when the TimesCenter first opened, “it was operated as an independent business, separate from The New York Times Company. It is possible that the small-business designation was one that fit at the time, but again, we do not know for sure.” Ms. Murphy said she did not know whether the TimesCenter was independently owned at the time or just operated as if it were. Today, she said, it is operated as part of The New York Times. Nor could she say whether, or why, a Times employee entered the inaccurate revenue and headcount figures.

At West Point, neither Ms. Judson or Mr. DeMaro have explained why Ms. Judson used the registration from the TimesCenter rather than the one from the Education Sales department. (In an e-mail, the Army’s Mr. Elkins said “multiple actions between the N.Y. Times registration of DUNS numbers and contracting officer actions makes it difficult to identify the exact sequence of events.”) But Ms. Meadvin of the S.B.A. disputed the claim that the business size field was automatically filled in, saying, “to our knowledge” it is “the only field that is manually entered.” Mr. Elkington of the G.S.A. did not respond to our request seeking clarification.

In any event, government contracting officers like Ms. Judson are not supposed to rely on information from the Central Contractor Registration to determine whether a business is small — the registration record says as much at the very top. Instead, they are obligated to verify size, or any other claims a company makes, with a separate database known as the Online Representations and Certifications Application, or ORCA — which imports size information from the Central Contractor Registration. (Filling out this form, Ms. D’Andrea said, “is worse than filling out your taxes. Just the password is 16 digits and you can’t have repeating letters and numbers.”)

However, while the Education Sales department submitted an ORCA form — and did not claim small-business status — the TimesCenter, the entity on the contract, never did complete the form. According to Mr. Elkins of the Army, “Before the contracts were awarded, the contracting officer observed that there were no Online Representations and Certifications Application records for The New York Times.” The officer then tried to verify The Times’s size, Mr. Elkins said, by turning to yet another database, the Dynamic Small Business Search maintained by the S.B.A., “using the DUNS that was initially provided by The N.Y. Times.” But, said Mr. Elkins, “this procedure was improper and led to the miscoded award; the Army should have asked for this information from the N.Y. Times, rather than relying upon the D.S.B. search engine.”

But if a record for a Times entity existed in the Dynamic Small Business database last year, it is gone now, and this explanation raises additional questions. Which DUNS number did The Times provide to the Army — the one that ended up on the contract, from the TimesCenter, or one from the education sales department? Moreover, if Ms. Judson knew The Times was in fact a large business, why would she conduct a Dynamic Small Business search in the first place? Finally, the actions described here suggest Ms. Judson did in fact have to manually enter the vendor’s business size in the contract, as the S.B.A. has maintained. (Mr. Elkins has not responded to requests for further explanation.)

As it happens, three other federal agencies have used the TimesCenter registration as the basis for contracts in recent years — apparently erroneously, since these agencies were buying newspaper ads, not renting out an event space — and in most of those contract action reports, The Times is described as “other than small.” And yet, for one contract with the Securities and Exchange Commission, The Times was again deemed a small business. The contract officer in that instance referred the Agenda to the S.E.C. press office to set up an interview, which a spokesman has thus far declined to do.

And that’s as far as we have been able to get. We still can’t say with certainty how The Times ended up with a small-business contract. What we did find was a record-keeping system so complex that it invites confusion and error from all parties. “We hear from our small-business members that navigating the federal marketplace is extremely confusing and complex,” said Molly Brogan, a spokeswoman for the National Small Business Association, an advocacy group based in Washington. “Perhaps some level of simplification — along with enhanced oversight and repercussions for those that knowingly miscode a large business as small — would alleviate some of these issues.”

Things may improve this year, when the G.S.A. is to merge the two separate contractor databases into one as part of a bigger move to consolidate all of the different systems — nine of them! — that constitute the government’s “Integrated Acquisition Environment.” According to Ms. Meadvin, the S.B.A. believes that eventually the system will operate the way the people at West Point seem to believe it already does: business size representations from ORCA will be among the data automatically entered into the contract action report.

But for now, small-business advocates bemoan a system that allows everyone involved to evade responsibility for their actions. “The ‘pass the blame’ game you’ve seen from the S.B.A. and the Army is highly indicative of a lack of accountability by the federal employees whose duty it is to ensure that the contracting process is handled professionally and fairly,” said Mr. Rosenfeld of the league. “The erroneous entry into C.C.R. by The Times is also an example of how a large company’s negligence can contribute to the problem.

“Contract error and mismanagement amounts to tens of billions of dollars’ worth of contracts a year being diverted away from small business,” he added. “With such faulty standards of oversight, accountability and transparency, we wonder how easy it must be to hide fraud in the federal contracting process.”

The Georgia District office of the Small Business Administration will be hosting a Congressional Small Business Workshop on behalf of Senator Saxby Chambliss on Monday, March 26, 2012 at the Georgia Tech Research Institute in Atlanta.

“Supplier Relationship Transformation” is the theme of the regional forum being conducted in Atlanta by the Office of Acquisition and Logistics of the Department of Veterans Affairs on Tuesday, April 10, 2012.

The forum provides the opportunity for suppliers to network with and gain knowledge from the VA’s acquisition leadership and industry peers.

The Fairness in Women-Owned Small Business Contracting Act of 2012 was introduced on March 7, 2012 by seven senators in a bipartisan effort to eliminate dollar-amount restrictions on contracts that WOSBs can compete for.

Sen. Olympia Snowe (R-ME), speaking to the Senate Committee on Small Business and Entrepreneurship, said the purpose of the bill is to remove inequities that exist in the women-owned small business contracting program, when compared to other socio-economic programs.

The proposed legislation would remove contract-award limitations as well as provide tools women need to compete fairly in the federal contracting arena by allowing for non-competitive contracts, when circumstances allow, the Congressional Record said.

“Women-owned small businesses have yet to receive their fair share of the federal marketplace,” said Sen. Snowe. “In fact, our government has never achieved its goal of five percent of contracts going to WOSBs, achieving only 4.04 percent in fiscal year 2010. Our bill would greatly assist federal agencies in achieving the small business goaling requirement for WOSBs,” she added.

The proposed legislation has received letters of support from the National Association of Women Business Owners, Women Impacting Public Policy and the U.S. Black Chamber, Inc.

“Women make this country run as business owners, entrepreneurs, politicians, mothers and more, but women-owned small businesses have yet to receive their fair share of federal contracting dollars,” Sen. Mikulski said.

In 2010, the Small Business Administration rolled out the WOSB Procurement Program, but the sponsoring senators and many women’s groups say it doesn’t go far enough.

The biggest complaint is that it still contains barriers that prevent women-owned businesses from fully developing.

“For 11 very long years, we urged the Congress and the federal agencies to put the WOSB program into place. Now that it has been implemented, our work has turned to improving the program and making it a vehicle for business growth for women business owners,” said Barbara Kasoff, president of WIPP, a national nonpartisan public-policy organization that advocates on behalf of nearly one million women-owned businesses.

“Women-owned small businesses are the fastest growing segment of our economy but they remain woefully underrepresented in small business contracting,” added. Sen. Bennet.

The senators proposed the bill to coincide with National Women’s History Month.

It also comes out on the heels of the House Small Business Committee clearing the way for six pro-contractors bills.

Retired Vice Adm. Lewis Crenshaw Jr. is a former Navy aviator so you have to forgive his aviation analogy, but in presenting accounting firm Grant Thornton’s annual contractor survey he made a convincing case that many companies in the market are dangerously close to stalling out.

On the surface, some of the numbers look good: 50 percent of the respondents said revenues were up. But that is down from last year’s survey that showed 55 percent reported growth.

Also troubling, is that 29 percent reported a decrease in revenue, compared to 22 percent last year.

Companies also reported profit margins in keeping with previous surveys, but the profits aren’t coming from revenue growth, Crenshaw said, but from controlling costs.

The aviation analogy for Crenshaw, now the national practice leader for Grant Thornton’s aerospace and defense market sector, is that you can only slow your airplane down for so long before it stalls and then you crash and burn.

“Next year’s numbers should be very interesting to look at,” he said.

Another warning sign is the assets to liability ratio, where 60 percent of companies reported a ratio of two or less.

“You’re not in good shape with that and it supports my stall analogy,” he said.

Grant Thornton’s annual survey asks companies about a variety of financial and business factors, including financial statistics, compensation, business strategies and contracting issues such as delays and terminations and issues dealing with government customers.

The accounting and consulting firm uses the survey to present a benchmark of the market and as a platform for discussing trends in the market.

Some of the highlights of its findings include the fact that firm-fixed-price contracts have not grown in use, according to the respondents and remains at about 20 percent of contracts.

“Despite the rhetoric it hasn’t changed year-to-year,” Crenshaw said.

Companies reported that the use of task order contracts rose by 50 percent and that less than 45 percent of revenue came from these contracts.

Another interesting finding was that 81 percent of the companies reported that they were asked to do out-of-scope work on contracts and 84 percent of those did the work. Surprisingly, only 25 percent filed for adjustments to their contracts.

“Out-of-scope work might become a bigger issue if more contracts go to firm-fixed price,” Crenshaw said.

There’s some buzz around a provision in the newly introduced Comprehensive Contingency Contracting Reform Act that would eliminate the ability established in the Federal Acquisition Regulation for a contractor unhappy with their past-performance evaluation to enter their own version of events in the file and to appeal the original past-performance evaluation to one level higher in the organization from where the original evaluation was done.

Matthew Weigelt wrote about the provision recently on FCW.com, with a moderately incendiary headline saying the provision would “stifle” contractor responses to past-performance reports. Matthew’s article was a top-five read and emailed article on the FCW site, so the issue is attracting attention.

With a small tweak, this could actually be a really good change. But the tweak is necessary, and I hope the bill’s authors will make it.

The big problem with the current FAR language is that it allows a contractor to appeal a past-performance rating one level above where it was made. In my view, this appeal right has been devastating for the honesty of past-performance ratings, and therefore for the ability of past-performance to be a differentiator in contract awards. For past-performance to work in choosing contractors, the government needs to be able to observe differentiation between better performers, who should be rewarded with new contracts, and poorer ones, who shouldn’t.

The serious shortcomings in the government’s past-performance rating system in turn is really too bad, because judgments, formal and informal, of the past performance of those with whom we do business are an absolutely crucial part of the ability of a market system to work in improving results. If we like the haircut a barber gave us, we go back, and if we didn’t, we don’t – this really provides an incentive for barbers to do a good job.

I was the person, as OFPP administrator, who authorized the current FAR language when the past-performance evaluation system began in the ‘90s. I was concerned at the time that this appeal provision was a mistake, and I believe that subsequent results have confirmed my worries. Contracting officers believe that a bad rating is an invitation to spend countless hours having to defend their judgments, and the easy response, especially with staff shortages and not enough time, is simply to go light on bad comments.

So as the person responsible for the original language, I vote for its repeal.

However, the bill’s provisions go a bit too far. There is no reason to eliminate the ability of the contractor to give their version of events and have it put in the contract file. That just seems like elementary fairness, so others using the past-performance report get to see a different version of what happened, if there is one. I think that at least enlightened elements in the contractor community could support elimination of the dysfunctional appeal process, which undermines the ability of the past-performance system to work at all. But elimination of even the right to comment is sure to arouse the ire of all contractors, as Weigelt’s article seems to show.

Can the bill authors tweak their language so it can help create a real improvement in the government’s past-performance rating system?

In the wake of reduced federal contract spending, a new study found that the price tag of doing business is higher for minority and women contractors as compared to other small firms.

An American Express survey, “Women and Minority Small Business Contractors: Divergent Paths to Equal Success,” measured 740 active small-business contractors and looked at how the women and minority contractor experiences compares with other small firms in terms of overall contracting activity and success.

It found, particularly for minorities, that the annual investment made to seek federal contracts was 35 percent higher than for the average small firm with the same credentials. While small firms invested an average of $103,827 to secure a federal contract in 2010, the investment made by minority business owners averaged $139,709. Women business owners invested a less-than-average $86,643, but still up 23 percent from their 2009 investment of $70,512.

“It took minority business owners longer to achieve their very first victory in procurement,” the study said.

As bidding activity and success rates dipped for small business contractors from 2008-2010 as compared to three years before, the survey found women contractors were part of the same trend, but minorities weren’t. While minority contractors had a steeper decline in bidding activity than other small businesses, minority firms’ success rates jumped 10 percent in garnering prime contracts between the periods of 2007-2009 and 2008-2010. Meanwhile, overall prime-contracting rates plunged 8 percent during the same period.

Another positive finding showed women and minority contractors were more likely than their non-contracting colleagues to exceed $1 million in revenue and more likely to own larger firms versus their non-contracting peers.

Furthermore, the survey examined “turning points” toward procurement success in these two groups. It found that 55 percent of most small businesses couldn’t point to a single action that defined their success. However, fellow business owners were found to be “more helpful than average” to minorities in sharing tips and experiences. Outside consultants (procurement advisors, accountants, or attorneys) and agency purchasing officials ranked “higher than average” at helping women.

These groups were more likely to have a specific certification or procurement designation. For women, getting on the GSA schedule was shown to buoy their business and 41 percent said that the designation has been “very or extremely helpful.” On the other hand, certification as a women-owned business was “very or extremely useful” to only 17 percent of the group. For minorities, 8(a) and disabled-veteran status has proved to be the most helpful certification.

The findings are part of the second annual government contracting survey from the American Express OPEN’s Victory in Procurement small business program.

All the businesses in the study are contained in the Federal Procurement Data System and are registered on the Central Contractor database.

It also aims to expand the varieties of contracts by using the Small Business Administration’s formula in comparing agency performance against small business goals and endorses increased liability for senior agency officials by withholding bonuses.

The 2012 Small Business Advocate Act gives the Offices of Small and Disadvantaged Business Utilization more authority.

The act also requires officers within the offices to review and revise agency resolutions and insource work performed by a small business.

The 2012 Subcontracting Transparency and Reliability Act modifies subcontracting provisions that guarantee small businesses will be designated a majority of the work and receive succeeding income.

Restrictions in subcontracting will not be measured by the amount given to the small business or the cost of the whole project.

Decisions must also be made public to give small businesses the chance to challenge resolutions in court.

The 2012 Small Business Opportunity Act encourages small business advocates within federal government to participate in federal procurement and acquisition planning proposal request announcements.

The 2012 Small Business Procurement Act extends an agency’s small business contracting goals to commission orders against multiple contract awards, including those with the General Services Administration’s Federal Supply Schedule Program.

Finally, the 2012 Early Stage Small Business Contracting Act launches an independent project to stimulate contract awards given to early-stage small businesses.

Early-stage small businesses have a maximum of 15 employees and report annual revenue of less than $1 million.

Companies would lose the opportunity to respond to performance reviews written by government officials under a new contracting bill. The reviews often play a major role in winning future contracts.

The Comprehensive Contingency Contracting Reform Act (S. 2139), which was introduced Feb. 29, would revise language in the Federal Acquisition Regulation that gives companies 30 days to comment, provide additional information or rebut a contracting official’s assessment of their work. The same FAR provision requires agencies to provide companies with a copy of the work performance evaluation.

Trey Hodgkins, senior vice president for national security and procurement policy at TechAmerica, said this proposed FAR revision is huge change in procurement. It eliminates the ability for contractors point out mistakes or offer their perspective on circumstances when agency officials view them differently.

“This provision may lead to a bad situation or bad feelings, at least,” Hodgkins said.

A customer agency may be unhappy because it didn’t get what it wanted, although the contractor may have been bound by the firm-fixed price contract that the agency awarded. The result might be a lackluster performance review.

“That’s not unheard of,” Hodgkins said.

Sens. Claire McCaskill (D-Mo.) and Jim Webb (D-Va.) introduced the contracting reform bill, which is based on recommendations from the Commission on Wartime Contracting in Iraq and Afghanistan. McCaskill and Webb created the independent commission in 2007, and the commission issued a final report in 2011.

Among its other provisions, the bill would expand what goes into the Federal Awardee Performance and Integrity Information System, a database of contractors’ past performance and other related information. It would have agencies include information on any of a contractor’s parent or subsidiary entities.

The legislation would elevate oversight responsibilities for procurement officials and enhance management structures for the agencies handling contingency contracting. McCaskill and Webb want procurement training added to education curricula for both professional military and contingency operations. The training would deal with defining requirements and the strategic impacts of contracts on the mission.

The legislation would require justifications for sole-source contracts to handle compelling demands.

The bill has been referred to the Homeland Security and Governmental Affairs Committee for further review.

The Wartime Contracting Commission spent three years investigating contracts in Iraq and Afghanistan. In its final report to Congress, the panel estimated that the United States had lost as much as $60 billion through contract waste and fraud in those countries. The commission also identified major failures in contingency contracting planning, execution and oversight.

It concluded that such waste will increase if officials don’t toughen accountability as U.S. operations wind down, support for programs declines, and major reconstruction projects become unsustainable.

McCaskill, who introduced legislation with Webb to create the commission, has been focused on procurement and contracting reform. She’s chairwoman of the Senate Homeland Security and Governmental Affairs Committee’s Contracting Oversight Subcommittee and also chairwoman of the Senate Armed Services Committee’s Readiness and Management Support Subcommittee.

“When Jim and I got here, nobody was paying attention to the billions of taxpayer dollars being wasted in Iraq and Afghanistan,” McCaskill said in a statement. “But with the roadmap provided by the commission report, we can change the way our government contracts during wartime, and make sure these failures are never repeated.”